RITTER v. USA

Filing 13

UNREPORTED ORDER granting 11 Unopposed Motion to Certify Class filed by TYRONE RITTER; granting 12 Joint Motion to Stay Case filed by USA; ordering the Parties to jointly file a proposed Protective Order, or a Status Report on their efforts to agree, by 4/10/2025. Signed by Judge Stephen S. Schwartz. (cmc) Service on parties made.

In the United States Court of Federal Claims
No. 24-1608C
(Filed: March 11, 2025)
NOT FOR PUBLICATION
*************************************
TYRONE RITTER,
*
*
Plaintiff,
*
*
v.
*
*
THE UNITED STATES,
*
*
Defendant.
*
*
*************************************
ORDER
The parties have jointly moved for issuance of Court-ordered notice of this
action to “Damage Inspectors Program Specialists (Field Representative-Disaster
Inspection) (position description number QZ8252 and K23007) who worked for [the
Federal Emergency Management Agency (“FEMA”)] from January 20, 2020” to the
present day. See Motion at 1 (ECF 11). The purpose of notice would be to facilitate
joinder by individuals “similarly situated” to Plaintiff in a collective action under the
Fair Labor Standards Act (“FLSA”). See 29 U.S.C. §§ 201 et seq. The parties have also
moved to stay the case as of the date notice issues. See Motion to Stay (ECF 12). Both
motions are GRANTED.
I have set out the standards for FLSA collective action notice elsewhere:
Section 16(b) of FLSA entitles employees to bring claims on behalf of
themselves and those who are “similarly situated.” 29 U.S.C. § 216(b).
Similarly situated individuals can choose to opt in to a FLSA case by
submitting joinder notices. The statute also authorizes courts to
facilitate joinder by issuing notice to similarly situated third parties. See
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170–71 (1989). But
as this Court explained in Valte v. United States, the standards for
determining whether to issue notice are unsettled. 155 Fed. Cl. 561,
566–73 (2021). Contrary to cases that have approached FLSA notice
with inaccurate analogies to class action procedures, see, e.g., Lusardi v.
Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), mandamus granted on other
grounds sub nom. Lusardi v. Lechner, 855 F.2d 1062 (3d Cir. 1988),
notice is a case-management device for ensuring orderly, voluntary
-1-

joinder of individuals likely to be “similarly situated” to the original
plaintiff. Valte, 155 Fed. Cl. at 573. “When a similarly situated group
exists, early notice is likely to be consistent with FLSA and good case
management practices — subject of course to the Court’s discretion.” Id.
at 574 (citing RCFC 83(b) & 16(b)).
For the Court to issue notice, Plaintiff must first show that he is likely
to be “similarly situated” to the people who would receive the proposed
notice. Id. at 574–75.
Plaintiff No. 1 v. United States, No. 19-1019C, 2022 WL 609445, at *1 (Fed. Cl. Feb.
10, 2022).
The parties have briefed their motion based on incorrect legal standards — in
particular, by asking the Court to apply a two-step “conditional certification”
procedure, and by asking the Court to issue notice without making factual
determinations about who might be similarly situated to the Plaintiff. See Motion at
7–8, 12. This Court is of course obligated to identify and apply the correct legal
standard even when the parties propose an incorrect one. See Kamen v. Kemper Fin.
Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is properly before the
court, the court is not limited to the particular legal theories advanced by the parties,
but rather retains the independent power to identify and apply the proper
construction of governing law.”); see also Escobedo v. Ace Gathering, Inc., No. 2320494, 2024 WL 5443121, at *4 (5th Cir. Sep. 30, 2024) (Oldham, J., dissenting from
denial of rehearing en banc) (“[E]ven when litigants agree on misstatements of law,
courts must be free to articulate the correct legal standard when deciding their
cases.”) (quoting Amanda Frost, The Limits of Advocacy, 59 Duke L.J. 447, 494
(2009)).
At the March 3, 2025 conference, the parties stipulated orally that Plaintiff
and all the individuals who would receive the proposed notice had the same job and
were subject to the same employment policies at the same time. Whatever the outer
limits might be of the “similarly situated” standard for FLSA collective actions, it is
presumably satisfied under those facts. See Hoffmann-La Roche Inc., 493 U.S. at 170
(explaining that notice enables “efficient resolution in one proceeding of common
issues of law and fact arising from the same alleged ... activity”). For the same reason,
it appears likely that the purposes of notice, i.e., “timely opt-in by people entitled to
proceed collectively, maintenance of orderly case deadlines, and supervision of
communications about the case with potentially interested non-parties,” will also be
satisfied here. Valte, 155 Fed. Cl. at 573 (citing Hoffmann-La Roche Inc., 493 U.S. at
171–72, and Briggs v. United States, 54 Fed. Cl. 205, 206–07 (2002)). I therefore agree

-2-

to the parties’ request for FLSA notice, so the Motion (ECF 11) is GRANTED. The
parties are further ORDERED as follows.
The parties have represented that before FLSA notice can issue, the Court
should enter a protective order allowing the government to disclose the names and
the last known addresses, phone numbers, and e-mail addresses of similarly situated
individuals to Plaintiff’s counsel. The parties are ORDERED to jointly file a proposed
protective order, or a status report on their efforts to agree, by April 10, 2025.
Within 14 days after entry of the protective order, Defendant is ORDERED to
produce to Plaintiff’s counsel a list containing the names and the last known
addresses, phone numbers, and e-mail addresses of Damage Inspectors Program
Specialists (Field Representative-Disaster Inspection) (position description number
QZ8252 and K23007) who worked for FEMA from January 20, 2020 to the date of this
Order.
Plaintiff’s counsel is authorized to send notice, in the form attached to the
Motion as Exhibit 1 (ECF 11-1), to all individuals whose names appear on the list
produced by Defendant. Notice may be by first-class mail, e-mail, and text-message.
Individuals whose names appear on the list produced by Defendant shall, if
they wish to join this case, return consent in the form attached to the Motion as
Exhibit 2 (ECF 11-2), within 60 days after the date the notices are initially mailed.
The Motion to Stay (ECF 12) is GRANTED. After notice issues, the parties
are ORDERED to notify the Court of the date of issuance within seven days.
IT IS SO ORDERED.
s/ Stephen S. Schwartz
STEPHEN S. SCHWARTZ
Judge

-3-